General Terms and Conditions of Business and Delivery

Art. 1 Scope of Application

Solely our general terms and conditions shall apply. They shall apply to all businesspersons (§ 14 of the German Civil Code), legal entities governed by public law, and special assets governed by public law. We shall not recognise any general terms and conditions of the customer which are contrary to or deviate from ours, unless we agree to such in writing. Our general terms and conditions shall also apply if we carry out a delivery without reservation despite being aware of contrary or deviating general terms and conditions on the part of the customer.

Art. 2 Offers, Documents

Our offers are subject to change without notice.
We retain title and copyright to all illustrations and drawings, estimates and other files and documents; these may not be made available to third parties. This applies in particular to those files and documents which are labelled confidential; the customer must obtain our express consent prior to passing these on to third parties.

Art. 3 Prices, Payment Conditions, Acceleration, Right to Rescind, Delay, Right of Retention, Offset, Counterclaim

Unless otherwise agreed, all prices shall be deemed to be ex the company’s headquarters in Dürnau, and shall not include: freight, insurance, customs duties, agreed-upon installation, foreign taxes, etc. plus respectively applicable value-added tax.
For orders, the price-list applicable on the day when the order is placed shall apply, unless otherwise agreed.
For new customers, payment shall occur exclusively by means of cash on delivery or cash in advance. In the event of an agreed-upon preauthorized payment or direct debit mandate, the charge shall take place within two days of billing. Instructions to pay, checks or bills of exchange shall only be accepted following special agreement and only on account of performance. The costs of discounting and collection shall be borne by the customer.
In the case of payment by instalment, if the customer is at least two instalments late, we shall be entitled to make the entire amount due even if checks or bills of exchange have been accepted. In such case the papers shall be returned in exchange for immediate cash payment.
If, after the conclusion of the agreement, the financial situation of the customer deteriorates considerably or changes in such occur which jeopardise our claim to counterperformance, or if the customer had already been in such a situation when the agreement was concluded, but this situation only becomes known later, we may refuse our performance until the customer renders counterperformance. This shall apply in particular to cases in which unsuccessful enforcement measures, bill or check protests, customer bankruptcy or customer’s request for relief from creditors, liquidation or similar affairs are involved. In such cases, we shall be able to set the customer a grace period for the rendering of counterperformance or payment of security. If the counterperformance is not rendered or security not deposited, we shall be entitled to withdraw from the agreement.
Only claims which have been recognised by us or a court of law may be set off against our claims. It shall not be allowed to advance a counterclaim in legal proceedings. The customer shall only be entitled to exercise a right of retention if the customer's claim is based on the same contractual relationship.
If claims against the customer exist on our part - regardless of the legal grounds - we shall have a right of retention against this customer until the complete payment of our claims by the customer.

Art. 4 Freedom to Render Performance, Delivery Period, Partial Delivery, Right to Rescind

Delivery is subject to our being supplied correctly and in due time, provided that we have granted no guarantees of contractual performance and have adopted no procurement risk.
The start of the delivery period stated by us is subject to the timely receipt of all documents and information to be supplied by the customer, as well as the clarification of all the details of the contract, in particular the technical details. Partial deliveries shall be permitted provided that they are reasonable to the customer.
Provided that we have granted no guarantees of contractual performance and adopted no procurement risk, we shall not be responsible for delays in delivery as a result of force majeure or any other circumstances for which we are not responsible -- in particular, disruptions in traffic and operations for which we are not responsible, strikes, lockouts, shortages of raw materials and war. If in such case we are unable to deliver within the agreed-upon delivery period, the delivery period shall be extended commensurately. If in such cases there is an impediment preventing delivery going beyond the delivery date which has been commensurately extended, we shall be entitled to withdraw from the agreement.
If we are unable to adhere to the agreed-upon delivery period, the customer shall be obligated to declare upon our request within a reasonable period of time whether the customer desires to continue the delivery. If the customer fails to issue such a declaration, we shall be entitled to withdraw from the agreement or rescind the agreement after the expiry of a reasonable period of time.

Art. 5 Transfer of Risk, Delivery

As long as our confirmation of order dictates nothing to the contrary, delivery shall be deemed to be agreed upon ex the company's headquarters in Dürnau. Shipment shall always be effected at the risk of the customer, even in the case of delivery from a location other than the place of performance - and including by prepaid freight and/or shipment by our own staff or vehicles.
If we have agreed to effect delivery, the customer shall provide trained staff and any technical equipment required (e.g. forklifts) in due time to ensure smooth unloading at the customer's offices. It is required that the vehicle is able to drive directly to the unloading site and unload the goods without undue delay. If this requirement is not met, we shall charge the customer for the extra expenses incurred as a result thereof.

Art. 6 Claims for Defects

Delivered goods shall be examined by the customer without undue delay or no more than one week after unloading as far as the normal course of business warrants it. If a defect is discovered, we must be notified immediately or at the latest within one week after delivery. If the customer fails to notify us, the goods shall be deemed to have been approved unless there is a defect which could not be recognised upon inspection. If such a defect is discovered later, the notification must be provided without undue delay after the defect is discovered; otherwise the goods shall be deemed to have been approved in spite of this defect. This shall not affect §§ 377 and 381 of the German Commercial Code (HGB).
The customer shall not be released from his obligation to inspect the goods even if he has recourse to other parties as set out under § 478 of the German Civil Code (BGB). If, in such cases, the customer fails to immediately notify us of defects which the customer's customer discovers, then the goods shall be deemed to have been approved in spite of this defect.
In case of supplementary performance due to defects, we shall only be obligated to bear the expenses required (in particular, transport, travelling expenses, labour and material costs) to the extent that these do not increase because the object has been delivered at a site other than the headquarters or the business branch of the customer to which delivery has been effected. (This number shall not apply in the event of recourse as set out under § 478 of the German Civil Code).
The customer's claims for damages (including claims for compensation from defects) shall be subject to a one-year statute of limitation from the time of delivery. This shall not apply in the event of recourse as set out under § 478 of the German Civil Code; furthermore, it shall not apply in the instances of §§ 438 Para. 1 No. 2 or § 634a Para. 1 No. 2 of the German Civil Code. This shall also not apply to damage claims arising from fatality, personal injury or health impairment; it shall also not apply to those claims resulting from a grossly negligent, wilful violation of an obligation by us or our vicarious agents.
The costs of return shipment shall be borne by the customer. Freight collect shipments shall not be accepted. For repair shipments, a copy of an invoice or delivery note, as well as a precise description of the issue, must be included.

Art. 7 Liability for Damage Compensation and Repayment of Expenses

In the event we are liable for the payment of damages, the following shall apply:
1. If the claims are based on a wilful violation of obligations by ourselves, our representatives or vicarious agents, we shall bear liability for the payment of damages in accordance with statutory provisions.
2. Unless otherwise stipulated in a., and provided that no significant contractual obligations exist on our part, our liability for damage compensation shall be excluded.
3. Insofar as significant contractual obligations are violated, our liability shall be limited to the contractually anticipated damages.
The exclusion and limitations on liability set out under no. 1 shall not only apply to contractual claims, but also to other, in particular, tortious, claims. They shall also apply to unsuccessful compensation claims for expenses incurred in lieu of performance.
The exclusion and limitations on liability set out under no. 1 shall not apply to any claims which may arise under §§ 1.4 of the Product Liability Act or as a result of wrongful harm to life, body, or health. Nor shall they apply provided that we have adopted a guarantee either for the condition of our goods or for contractual performance or for a procurement risk, and provided that either a guarantee case has arisen, or the procurement risk has materialized.
Liability arising from the adoption of a procurement risk shall only apply to us if we have accepted the procurement risk expressly in writing.
If our liability is excluded or limited, this shall also apply to the personal liability of our employees, representatives and vicarious agents.
A reversal of the burden of proof is not associated with the above provisions.

Art. 8. Amending and Deviating Stipulations in the Event of International Agreements

If the customer has its offices outside the Federal Republic of Germany, the following provisions shall apply in addition to the articles 1-7 and 9:
1. We shall not be liable for the admissibility of the proper use (i.e. use according to the contract) of the objects delivered under the statutory provisions of the country to which the goods are delivered. Nor shall we be liable for any taxes which accrue there.
2. We shall not be liable for impediments to delivery resulting from government measures, in particular import or export restrictions.
If the customer has its offices outside the Federal Republic of Germany and the United Nations Convention on Contracts for the International Sale of Goods (CISG, Viennese UN Purchasing Law) applies in its respectively valid version, the following provisions shall apply as well:
1. Changes to or the rescission of the agreement must be in writing.
2. The following shall apply in place of Art. 6 and 7:
We shall only be liable for damages to the customer in accordance with statutory provision if such is based on wilful or grossly negligent violation of the agreement by ourselves, our representatives or our vicarious agents. We shall also bear liability under statutory provisions if we violate an important contractual obligation. The aforementioned restrictions on liability shall not apply in the event of any claims under §§ 1.4 of the German Product Liability Act or in the event of claims resulting from fatalities or personal injury caused by the goods.
If objects are delivered which are not in conformity with the agreement, the customer shall only be entitled to rescind the agreement or demand delivery of substitutes if damage claims against us are excluded or the customer cannot be reasonably expected to use the goods which are contrary to the agreement and to claim for the damage which remains. In such cases, we shall first be permitted to rectify the defects. If the attempt to rectify the defects fails and/or it leads to an unreasonable delay, the customer shall be entitled to rescind the agreement or demand delivery of a substitute as the customer sees fit. The customer shall also be entitled to the same if the effort to rectify the defects causes an unreasonable inconvenience or uncertainty regarding the reimbursement of expenses of the purchaser.
The customer's claims to defect shall be subject to a one-year statute of limitation from the time of delivery.

Art. 9 Security on Reservation of Title to Ownership

1. We reserve title to the goods delivered until all payments from the agreement are received. In the case of the collection of accounts receivable by us in an agreed-upon direct debit procedure, the good shall remain our property until the customer can no longer contradict the collection of the claim.
2. In case of seizure and other interventions by third parties, the customer must immediately inform us in writing, for the purposes of the defence of our rights (e.g. suits arising from § 771 of the German Code of Civil Procedure [ZPO]). Insofar as the third party is not in the position to compensate us for the judicial or extrajudicial costs of a suit pursuant to § 771 ZPO, the customer shall be liable to us for the associated loss.
3. In the case of the collection of accounts receivable by us in an agreed-upon direct debit procedure, the customer shall not have the right to resell or use the delivered wares as long as he can still contradict the collection of the claim. Otherwise – in particular in the case of the customer's waiver of his right to object to the collection of the claim by us in the direct debit procedure – the customer shall be entitled to sell and to use goods supplied in normal business operations; the customer assigns to us here and now, however, all claims which accrue to the customer due to resale to its customers or to third parties to the amount of the value of the conditional commodities regardless of whether the goods supplied have been resold without or following processing. The value of the conditional commodities shall be the final invoice amount (including value-added tax) agreed upon with us. If we have co-title to the re-sold conditional commodities, the claims shall be assigned in the amount commensurate with our share in the conditional commodity. The customer shall not be entitled to otherwise sell the goods, in particular to assign or use them as security.
4. The customer shall also be authorised to collect the claim emanating from the resale also subsequent to their assignment until such authorisation is withdrawn. Our authority to collect shall remain unaffected by this. We shall be required, however, to refrain from collecting the claim and from revoking the customer's authorisation to claim as long as the following conditions are met: the customer meets his payment obligations emanating from the earnings he has taken in; the customer is not in arrears on payment; in particular, both that no petition has been filed for the opening of a bankruptcy procedure, or that payments have been discontinued. If such is the case, however, we may demand that the customer disclose the claims he has assigned as well as its creditors; he must also turn over to us all information required to collect such, as well as all the documents relating hereto; he must also notify his creditors of the cession.

We shall be obligated to only release the security we are entitled to upon the request of the customer if the realised value of our securities exceeds the claims to be secured by more than 10% or if it exceeds the nominal amount by more than 50 %; we shall be able to select the security to be turned over as we see fit.

Art. 10 Special Provisions for the Mediation of Performance by Telephone Providers (referred to here as "Telephone Contract")

The payment of commission shall occur exclusively in advance. The commissions shall be considered as earned when we receive the signed, original contract including the copied bearer instrument. If we do not receive such within 14 days of successful connection, the commission can be charged back. The dealer shall be responsible for the proof of timely delivery; it is therefore recommended that the applications are sent by registered mail and that a copy is made. In cases of suspected fraud, a reversal debit of the commission amounts already paid out shall take effect, until the conclusive clarification of the circumstances.
A separate distribution partner contract must be created for the mediation of contractual relations for network operators and providers. Even when the mediatory activities take place without a distribution partner contract, the mediator shall be subject to a thorough identification process. To this end, the identification papers (bearer instrument) (as well as a corresponding bank, credit or EC card) must be available for the mediated participant. The place of residence of the participant (street, unit number, postal code and location) must be included in the bearer instrument. The following shall be included in the identity verification: a visual inspection for the authenticity of the submitted documents; a comparison of the applicant and the individual pictured in the identification; and a comparison of the signatures on the participation contract with those on the identification papers. For participants of foreign nationality, the submission of a permanent residence permit shall be required. In the event of doubts regarding the identity of the participant or the authenticity of the documents, the formation of the contract shall be terminated. In the event of non-compliance with the above provisions, the mediator shall be liable for the full extent of damages (e.g. reversal debit of commissions and unpaid bills) attributable to said non-compliance.
If our contractual partner culpably makes false statements in connection with the mediation of telephone contracts, he must pay us a contractual penalty in the amount of twice the commissions concerned here. This shall not affect further, more extensive damage compensation claims.
If telephone contracts are cancelled during the minimum term of these contracts or terminated by the telephone contract supplier, the mediator must compensate us for any associated commission received. A commission claim that is yet unpaid shall be cancelled in this case.
The distribution partner confirms to TelePart that his company earns revenue that is subject to revenue tax; therefore, TelePart shall have the right to a separate tax document. The distribution partner confirms that he is not a small business as stipulated by § 19 of the Revenue Tax Code (UStG).
Insofar as the mediator is a commercial agent in terms of 84 ff of the German Commercial Code (HGB), the following shall apply: the above provision of Art. 10 No. 2 shall only apply provided that the non-compliance or the partial non-compliance with the telephone contract is attributable to circumstances that neither we nor the supplier of the telephone contract are responsible for. In the event of partial non-compliance, the above provision of Art. 10 No. 2 shall apply only with respect to the associated commission amount which corresponds to the non-completed portion of the telephone contract.

Art. 11 Applicable Law, Place of Performance, Legal Venue

The law of the Federal Republic of Germany shall apply to this Agreement.
The place of performance for all services emanating from this Agreement is D-73105 Dürnau.
In the case of agreements with businesspersons, legal persons under public law, special assets under public law and foreigners who have no legal venue in Germany, the legal venue shall be D-73105 Dürnau. We reserve the right, however, to also file suit at the headquarters of the customer.

Art. 12 Miscellaneous

Should individual provisions of this contract be or become invalid or void, the validity of the remaining provisions shall remain unaffected. In this case, the parties shall be obliged to replace the invalid provision with one that corresponds financially to a provision to which the parties would have agreed had they been aware of the invalidity.

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